Law | Opinion

Turtle Talk: Tribes caught off guard by new background check law

Tuesday, June 14, 2016

The Spirit Lake Nation of North Dakota opened its new tribal court building with the help of former Sen. Byron Dorgan (D). Photo by Janifer Jensen / Spirit Lake Nation

Writing for Turtle Talk, attorney Bryan Newland, a member of the Bay Mills Indian Community, and professor Kate Fort discuss the impacts of S.184, the Native American Children's Safety Act, in Indian Country. President Barack Obama signed the bill into law on June 3 and tribal courts and tribal social services agencies will be required to conduct background checks on all adults in a foster home before placing a child in that home:

As people across Indian country know, many households on the reservation include temporary residents – including extended family members, adult children, family friends, or other community members in need. A member of the household may have gone through the tribe’s healing to wellness court. NACSA does not leave tribal agencies much flexibility to account for these homes or living arrangements. Where tribal courts and agencies previously had discretion to make those judgment calls, NACSA removes that discretion. Any adult living in the home with a prior drug-related offense may automatically disqualify that home from being approved as a foster care placement.
In addition, NACSA requires the Department of the Interior to issue binding guidance on implementation of the statute, including procedures for “self-reporting” by the head of the household if he/she has knowledge that any other adult in the home was convicted of a crime listed above. Tribes will be required to enforce this mandate, but it is unclear how.
NACSA’s mandate that tribes conduct background checks on state databases presumes that state agencies will cooperate with tribal agencies in their efforts to conduct such searches. The statute does not provide Indian tribes with any legal tools, other than the authority to enter into “voluntary agreements with State entities,” to require such cooperation. It is not difficult to imagine a scenario in which state agencies are uncooperative in conducting those searches, thus slowing down foster care placement in Indian country. It is one thing for a tribe to have solid relationships with a local county or even the state—it is quite another to have to reach out to every state where an individual lived in the past five years (let’s say, Ohio, for example) for cooperation.

Get the Story:
Bryan Newland and Kate Fort: Commentary on the Native American Children’s Safety Act (Turtle Talk 6/14)